When Power evicted the demonstrators today, it told them to take their tents, structures and bedrolls with them, but promised they could return, sans mattresses, once Zuccotti Park had been cleaned. The need to clean the park may or may not have been a pretext for evicting the demonstrators—who several weeks ago took the job of cleaning the park in hand themselves. But the core dispute in the case—as it has been in other cities—is whether the demonstrators can use the park as an encampment. The city argued that such a use is inconsistent with the use of the park by the general public for “passive recreation.” And this afternoon, a state court judge agreed.
Just before dawn, New York County Supreme Court Justice Lucy Billings had issued a temporary restraining order barring the police from evicting further demonstrators or from prohibiting those already evicted from returning to the park with tents and sleeping gear. But that order was dissolved late this afternoon by Judge Michael Stallman, who found the prohibition on the erection of structures and tents, and other rules imposed on the use of Zuccotti Park by its owner, Brookfield Properties, were legitimate time, place, and manner restrictions.
Judge Stallman had less than four hours in which to weigh a complex First Amendment dispute on contested facts, so it is not an especially harsh criticism to observe that his conclusion is supported by almost no reasoning at all. And for the demonstrators, there is plenty in the opinion to take issue with. Judge Stallman conceded that the rules adopted by Brookfield were not put in place until after the Occupy movement had begun, which in itself raises serious questions of pretext, and concerns about whether the rules were adopted—43 years after the park was first dedicated to public use—to stifle the message, or the messengers, assembled near One Liberty Plaza.
The court also held that the demonstrators had failed to produce evidence that the rules restricted their First Amendment rights, or were not necessary to preserve the rights of the public generally to use the park safely. But of course the First Amendment ultimately requires the government to defend restrictions on the right of access of a public park, with the benefit of the doubt going to demonstrators.
In the end, the pivotal question will be whether the use of Zuccotti Park—and its sister sites around the country—for semipermanent protests is protected by the First Amendment. That question was not really answered this afternoon, but the prohibition on tents and similar structures suggests the unwillingness of at least one New York County Supreme Court justice to believe that the occupation, as such, can be reconciled with the day-to-day use of a public space.
Opponents of the Zuccotti Park encampment like to point to a 1984 Supreme Court case that upheld a prohibition on sleeping in Lafayette Park, across from the White House, as proof that the First Amendment does not protect sleeping overnight in the national parks out as a form of protest. That analysis was too simple then and is too simple today: For one thing, the regulation sustained in the Clark decision applied throughout the national park system, and was in place before the demonstrators in Lafayette Park bumped up against it. For another, the court upheld the ban on sleeping outdoors in that case based on concerns unique to the parks clustered around the White House.
Occupy Wall Street exists in a First Amendment space all its own. The protestors do not, in an important sense, occupy the spaces in which they exist to the exclusion of other uses, like a rally or a parade. They depend for their rhetorical force not on a temporary massing of thousands, but on the persistent presence, day in and day out, of a committed core of demonstrators, whose ongoing presence extends the teachable moment of their message into a perpetual, if not permanent, opportunity for dialogue. The Occupy movement, in that sense, is a sort of national sit-in, whose continuing presence forces us to confront those questions we would otherwise more easily avoid. The essential moral challenge is the same as that posed by the lunch-counter demonstrators of the civil rights era: We are here, we politely dissent, and we defy you to move us along for your own convenience.
In the end what matters is not whether those demonstrators can sleep in tents, but whether they have the stamina to remain, quiet and unsubdued, in the public space of their choice. If they can do so as winter closes in, in conditions rendered inhospitable by cities intent on forcing them to go, they will have stripped the government of excuses to move them along, and will have created a nonviolent confrontation as worthy of our praise as Selma or the Salt March.
Disclosure: The author has represented members of the Occupy Cleveland movement in federal court. Nothing in this essay relates to that action.